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§ 941.23, CCW – Elements – “Go Armed”

State v. Munir A. Hamdan, 2003 WI 113, on bypass
For Hamdan: Chris J. Trebatoski


¶20. To convict a person of carrying a concealed weapon in violation of Wis. Stat. § 941.23, the State must prove three elements. First, the State must show that a person who is not a peace officer went armed with a dangerous weapon. State v. Dundon, 226 Wis. 2d 654, 661, 594 N.W.2d 780 (1999) (citing State v. Asfoor, 75 Wis. 2d 411, 433-34, 249 N.W.2d 529 (1977)). Second, the State must show that the defendant was aware of the presence of the weapon. Id. (citing Asfoor, 75 Wis. 2d at 433). Third, the State must show that the weapon was concealed. Id. (citing Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930)). Over the years, every element of the statute has been vigorously litigated.

¶22. One of the leading cases in the interpretation of the “goes armed” element is State v. Keith, 175 Wis. 2d 75, 498 N.W.2d 865 (Ct. App. 1993). In Keith, the court of appeals upheld the CCW conviction of a woman who was carrying a concealed weapon while she was standing on the front porch of the duplex where she was living. Id. at 77.6 Rejecting the defendant’s argument that the “goes armed” language requires a finding of locomotion, the court held that “there is no separate element requiring that a person actually go somewhere, and, therefore, carrying a concealed weapon ‘does not necessarily import the idea of locomotion.'” Id. at 79 (quoting 94 C.J.S. Weapons § 8a (1956)).

¶23. Hamdan contends that Keith was wrongly decided. He argues that the CCW statute’s use of the term “goes armed” necessitates a requirement of some locomotion on the part of a defendant. Comparing CCW statutes from other states that merely prohibit “carrying” concealed weapons, Hamdan reasons that the “goes armed” language of Wis. Stat. § 941.23 represents an implied exception for a person’s residence or place of business. Under this view, Hamdan did not “go armed” while carrying his weapon because he never left his own store.

¶24. We reject Hamdan’s proposed construction of the CCW statute and continue to adhere to prior interpretations of the “goes armed” language. …


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